simply the counselors of the President, having become in a very real
sense members of the executive, their guiding power in the conduct of
affairs, instead of advancing, has steadily diminished; because while
they were being made integral parts of the machinery of administration,
Congress was extending its own sphere of activity, was getting into the
habit of investigating and managing every thing. The executive was
losing and Congress gaining weight; and the station to which cabinets
finally attained was a station of diminished and diminishing power.
There is no distincter tendency in congressional history than the
tendency to subject even the details of administration to the constant
supervision, and all policy to the watchful intervention, of the
Standing Committees.
I am inclined to think, therefore, that the enlarged powers of Congress
are the fruits rather of an immensely increased efficiency of
organization, and of the redoubled activity consequent upon the facility
of action secured by such organization, than of any definite and
persistent scheme of conscious usurpation. It is safe to say that
Congress always had the desire to have a hand in every affair of federal
government; but it was only by degrees that it found means and
opportunity to gratify that desire, and its activity, extending its
bounds wherever perfected processes of congressional work offered
favoring prospects, has been enlarged so naturally and so silently that
it has almost always seemed of normal extent, and has never, except
perhaps during one or two brief periods of extraordinary political
disturbance, appeared to reach much beyond its acknowledged
constitutional sphere.
It is only in the exercise of those functions of public and formal
consultation and cooperation with the President which are the peculiar
offices of the Senate, that the power of Congress has made itself
offensive to popular conceptions of constitutional propriety, because it
is only in the exercise of such functions that Congress is compelled to
be overt and demonstrative in its claims of over-lordship. The House of
Representatives has made very few noisy demonstrations of its usurped
right of ascendency; not because it was diffident or unambitious, but
because it could maintain and extend its prerogatives quite as
satisfactorily without noise; whereas the aggressive policy of the
Senate has, in the acts of its "executive sessions," necessarily been
overt, in spite of the closing of the doors, because when acting as the
President's council in the ratification of treaties and in appointments
to office its competition for power has been more formally and directly
a contest with the executive than were those really more significant
legislative acts by which, in conjunction with the House, it has
habitually forced the heads of the executive departments to observe the
will of Congress at every important turn of policy. Hence it is that to
the superficial view it appears that only the Senate has been outrageous
in its encroachments upon executive privilege. It is not often easy to
see the true constitutional bearing of strictly legislative action; but
it is patent even to the least observant that in the matter of
appointments to office, for instance, senators have often outrun their
legal right to give or withhold their assent to appointments, by
insisting upon being first consulted concerning nominations as well, and
have thus made their constitutional assent to appointments dependent
upon an unconstitutional control of nominations.
This particular usurpation has been put upon a very solid basis of law
by that Tenure-of-Office Act, which took away from President Johnson, in
an hour of party heat and passion, that independent power of removal
from office with which the Constitution had invested him, but which he
had used in a way that exasperated a Senate not of his own way of
thinking. But though this teasing power of the Senate's in the matter of
the federal patronage is repugnant enough to the original theory of the
Constitution, it is likely to be quite nullified by that policy of
civil-service reform which has gained so firm, and mayhap so lasting, a
footing in our national legislation; and in no event would the control
of the patronage by the Senate have unbalanced the federal system more
seriously than it may some day be unbalanced by an irresponsible
exertion of that body's semi-executive powers in regard to the foreign
policy of the government. More than one passage in the history of our
foreign relations illustrates the danger. During the single
congressional session of 1868-9, for example, the treaty-_marring_ power
of the Senate was exerted in a way that made the comparative weakness of
the executive very conspicuous, and was ominous of very serious results.
It showed the executive in the right, but feeble and irresolute; the
Senate masterful, though in the wrong. Denmark had been asked to part
with the island of St. Thomas to the United States, and had at first
refused all terms, not only because she cared little for the price, but
also and principally because such a sale as that proposed was opposed to
the established policy of the powers of Western Europe, in whose favor
Denmark wished to stand; but finally, by stress of persistent and
importunate negotiation, she had been induced to yield; a treaty had
been signed and sent to the Senate; the people of St. Thomas had
signified their consent to the cession by a formal vote; and the island
had been actually transferred to an authorized agent of our government,
upon the faith, on the part of the Danish ministers, that our
representatives would not have trifled with them by entering upon an
important business transaction which they were not assured of their
ability to conclude. But the Senate let the treaty lie neglected in its
committee-room; the limit of time agreed upon for confirmation passed;
the Danish government, at last bent upon escaping the ridiculous
humiliation that would follow a failure of the business at that stage,
extended the time and even sent over one of its most eminent ministers
of state to urge the negotiation by all dignified means; but the Senate
cared nothing for Danish feelings and could afford, it thought, to
despise President Grant and Mr. Fish, and at the next session rejected
the treaty, and left the Danes to repossess themselves of the island,
which we had concluded not to buy after all.
It was during this same session of 1868-9 that the Senate teased the
executive by throwing every possible obstacle in the way of the
confirmation of the much more important treaty with Great Britain
relative to the Alabama claims, nearly marring for good and all one of
the most satisfactory successes of our recent foreign policy;[18] but it
is not necessary to dwell at length upon these well-known incidents of
our later history, inasmuch as these are only two of innumerable
instances which make it safe to say that from whatever point we view the
relations of the executive and the legislature, it is evident that the
power of the latter has steadily increased at the expense of the
prerogatives of the former, and that the degree in which the one of
these great branches of government is balanced against the other is a
very insignificant degree indeed. For in the exercise of his power of
veto, which is of course, beyond all comparison, his most formidable
prerogative, the President acts not as the executive but as a third
branch of the legislature. As Oliver Ellsworth said, at the first
session of the Senate, the President is, as regards the passage of
bills, but a part of Congress; and he can be an efficient, imperative
member of the legislative system only in quiet times, when parties are
pretty evenly balanced, and there are no indomitable majorities to tread
obnoxious vetoes under foot.
Even this rapid outline sketch of the two pictures, of the theory and of
the actual practices of the Constitution, has been sufficient,
therefore, to show the most marked points of difference between the two,
and to justify that careful study of congressional government, as the
real government of the Union, which I am about to undertake. The
balances of the Constitution are for the most part only ideal. For all
practical purposes the national government is supreme over the state
governments, and Congress predominant over its so-called coordinate
branches. Whereas Congress at first overshadowed neither President nor
federal judiciary, it now on occasion rules both with easy mastery and
with a high hand; and whereas each State once guarded its sovereign
prerogatives with jealous pride, and able men not a few preferred
political advancement under the governments of the great commonwealths
to office under the new federal Constitution, seats in state
legislatures are now no longer coveted except as possible approaches to
seats in Congress; and even governors of States seek election to the
national Senate as a promotion, a reward for the humbler services they
have rendered their local governments.
What makes it the more important to understand the present mechanism of
national government, and to study the methods of congressional rule in a
light unclouded by theory, is that there is plain evidence that the
expansion of federal power is to continue, and that there exists,
consequently, an evident necessity that it should be known just what to
do and how to do it, when the time comes for public opinion to take
control of the forces which are changing the character of our
Constitution. There are voices in the air which cannot be misunderstood.
The times seem to favor a centralization of governmental functions such
as could not have suggested itself as a possibility to the framers of
the Constitution. Since they gave their work to the world the whole face
of that world has changed. The Constitution was adopted when it was six
days' hard traveling from New York to Boston; when to cross East River
was to venture a perilous voyage; when men were thankful for weekly
mails; when the extent of the country's commerce was reckoned not in
millions but in thousands of dollars; when the country knew few cities,
and had but begun manufactures; when Indians were pressing upon near
frontiers; when there were no telegraph lines, and no monster
corporations. Unquestionably, the pressing problems of the present
moment regard the regulation of our vast systems of commerce and
manufacture, the control of giant corporations, the restraint of
monopolies, the perfection of fiscal arrangements, the facilitating of
economic exchanges, and many other like national concerns, amongst which
may possibly be numbered the question of marriage and divorce; and the
greatest of these problems do not fall within even the enlarged sphere
of the federal government; some of them can be embraced within its
jurisdiction by no possible stretch of construction, and the majority of
them only by wresting the Constitution to strange and as yet unimagined
uses. Still there is a distinct movement in favor of national control of
all questions of policy which manifestly demand uniformity of treatment
and power of administration such as cannot be realized by the separate,
unconcerted action of the States; and it seems probable to many that,
whether by constitutional amendment, or by still further flights of
construction, yet broader territory will at no very distant day be
assigned to the federal government. It becomes a matter of the utmost
importance, therefore, both for those who would arrest this tendency,
and for those who, because they look upon it with allowance if not with
positive favor, would let it run its course, to examine critically the
government upon which this new weight of responsibility and power seems
likely to be cast, in order that its capacity both for the work it now
does and for that which it may be called upon to do may be definitely
estimated.
Judge Cooley, in his admirable work on "The Principles of American
Constitutional Law," after quoting Mr. Adams's enumeration of the checks
and balances of the federal system, adds this comment upon Mr. Adams's
concluding statement that that system is an invention of our own. "The
invention, nevertheless, was suggested by the British Constitution, in
which a system almost equally elaborate was then in force. In its
outward forms that system still remains; but there has been for more
than a century a gradual change in the direction of a concentration of
legislative and executive power in the popular house of Parliament, so
that the government now is sometimes said, with no great departure from
the fact, to be a government by the House of Commons." But Judge Cooley
does not seem to see, or, if he sees, does not emphasize the fact, that
our own system has been hardly less subject to "a gradual change in the
direction of a concentration" of all the substantial powers of
government in the hands of Congress; so that it is now, though a wide
departure from the form of things, "no great departure from the fact" to
describe ours as a government by the Standing Committees of Congress.
This fact is, however, deducible from very many passages of Judge
Cooley's own writings; for he is by no means insensible of that
expansion of the powers of the federal government and that
crystallization of its methods which have practically made obsolete the
early constitutional theories, and even the modified theory which he
himself seems to hold.
He has tested the nice adjustment of the theoretical balances by the
actual facts, and has carefully set forth the results; but he has
nowhere brought those results together into a single comprehensive view
which might serve as a clear and satisfactory delineation of the
Constitution of to-day; nor has he, or any other writer of capacity,
examined minutely and at length that internal organization of Congress
which determines its methods of legislation, which shapes its means of
governing the executive departments, which contains in it the whole
mechanism whereby the policy of the country is in all points directed,
and which is therefore an essential branch of constitutional study. As
the House of Commons is the central object of examination in every study
of the English Constitution, so should Congress be in every study of our
own. Any one who is unfamiliar with what Congress actually does and how
it does it, with all its duties and all its occupations, with all its
devices of management and resources of power, is very far from a
knowledge of the constitutional system under which we live; and to every
one who knows these things that knowledge is very near.
II.
THE HOUSE OF REPRESENTATIVES.
No more vital truth was ever uttered than that freedom and free
institutions cannot long be maintained by any people who do not
understand the nature of their own government.
Like a vast picture thronged with figures of equal prominence and
crowded with elaborate and obtrusive details, Congress is hard to see
satisfactorily and appreciatively at a single view and from a single
stand-point. Its complicated forms and diversified structure confuse the
vision, and conceal the system which underlies its composition. It is
too complex to be understood without an effort, without a careful and
systematic process of analysis. Consequently, very few people do
understand it, and its doors are practically shut against the
comprehension of the public at large. If Congress had a few
authoritative leaders whose figures were very distinct and very
conspicuous to the eye of the world, and who could represent and stand
for the national legislature in the thoughts of that very numerous, and
withal very respectable, class of persons who must think specifically
and in concrete forms when they think at all, those persons who can make
something out of men but very little out of intangible generalizations,
it would be quite within the region of possibilities for the majority of
the nation to follow the course of legislation without any very serious
confusion of thought. I suppose that almost everybody who just now gives
any heed to the policy of Great Britain, with regard even to the reform
of the franchise and other like strictly legislative questions, thinks
of Mr. Gladstone and his colleagues rather than of the House of Commons,
whose servants they are. The question is not, What will Parliament do?
but, What will Mr. Gladstone do? And there is even less doubt that it is
easier and more natural to look upon the legislative designs of Germany
as locked up behind Bismarck's heavy brows than to think of them as
dependent upon the determinations of the Reichstag, although as a matter
of fact its consent is indispensable even to the plans of the imperious
and domineering Chancellor.
But there is no great minister or ministry to represent the will and
being of Congress in the common thought. The Speaker of the House of
Representatives stands as near to leadership as any one; but his will
does not run as a formative and imperative power in legislation much
beyond the appointment of the committees who are to lead the House and
do its work for it, and it is, therefore, not entirely satisfactory to
the public mind to trace all legislation to him. He may have a
controlling hand in starting it; but he sits too still in his chair, and
is too evidently not on the floor of the body over which he presides, to
make it seem probable to the ordinary judgment that he has much
immediate concern in legislation after it is once set afoot. Everybody
knows that he is a staunch and avowed partisan, and that he likes to
make smooth, whenever he can, the legislative paths of his party; but it
does not seem likely that all important measures originate with him, or
that he is the author of every distinct policy. And in fact he is not.
He is a great party chief, but the hedging circumstances of his official
position as presiding officer prevent his performing the part of active
leadership. He appoints the leaders of the House, but he is not himself
its leader.
The leaders of the House are the chairmen of the principal Standing
Committees. Indeed, to be exactly accurate, the House has as many
leaders as there are subjects of legislation; for there are as many
Standing Committees as there are leading classes of legislation, and in
the consideration of every topic of business the House is guided by a
special leader in the person of the chairman of the Standing Committee,
charged with the superintendence of measures of the particular class to
which that topic belongs. It is this multiplicity of leaders, this
many-headed leadership, which makes the organization of the House too
complex to afford uninformed people and unskilled observers any easy
clue to its methods of rule. For the chairmen of the Standing Committees
do not constitute a cooperative body like a ministry. They do not
consult and concur in the adoption of homogeneous and mutually helpful
measures; there is no thought of acting in concert. Each Committee goes
its own way at its own pace. It is impossible to discover any unity or
method in the disconnected and therefore unsystematic, confused, and
desultory action of the House, or any common purpose in the measures
which its Committees from time to time recommend.
And it is not only to the unanalytic thought of the common observer who
looks at the House from the outside that its doings seem helter-skelter,
and without comprehensible rule; it is not at once easy to understand
them when they are scrutinized in their daily headway through open
session by one who is inside the House. The newly-elected member,
entering its doors for the first time, and with no more knowledge of
its rules and customs than the more intelligent of his constituents
possess, always experiences great difficulty in adjusting his
preconceived ideas of congressional life to the strange and unlooked-for
conditions by which he finds himself surrounded after he has been sworn
in and has become a part of the great legislative machine. Indeed there
are generally many things connected with his career in Washington to
disgust and dispirit, if not to aggrieve, the new member. In the first
place, his local reputation does not follow him to the federal capital.
Possibly the members from his own State know him, and receive him into
full fellowship; but no one else knows him, except as an adherent of
this or that party, or as a new-comer from this or that State. He finds
his station insignificant, and his identity indistinct. But this social
humiliation which he experiences in circles in which to be a congressman
does not of itself confer distinction, because it is only to be one
among many, is probably not to be compared with the chagrin and
disappointment which come in company with the inevitable discovery that
he is equally without weight or title to consideration in the House
itself. No man, when chosen to the membership of a body possessing great
powers and exalted prerogatives, likes to find his activity repressed,
and himself suppressed, by imperative rules and precedents which seem
to have been framed for the deliberate purpose of making usefulness
unattainable by individual members. Yet such the new member finds the
rules and precedents of the House to be. It matters not to him, because
it is not apparent on the face of things, that those rules and
precedents have grown, not out of set purpose to curtail the privileges
of new members as such, but out of the plain necessities of business; it
remains the fact that he suffers under their curb, and it is not until
"custom hath made it in him a property of easiness" that he submits to
them with anything like good grace.
Not all new members suffer alike, of course, under this trying
discipline; because it is not every new member that comes to his seat
with serious purposes of honest, earnest, and duteous work. There are
numerous tricks and subterfuges, soon learned and easily used, by means
of which the most idle and self-indulgent members may readily make such
show of exemplary diligence as will quite satisfy, if it does not
positively delight, constituents in Buncombe. But the number of
congressmen who deliberately court uselessness and counterfeit
well-doing is probably small. The great majority doubtless have a keen
enough sense of their duty, and a sufficiently unhesitating desire to do
it; and it may safely be taken for granted that the zeal of new members
is generally hot and insistent. If it be not hot to begin with, it is
like to become so by reason of friction with the rules, because such men
must inevitably be chafed by the bonds of restraint drawn about them by
the inexorable observances of the House.